Delmarva DWI case heard by high court

Driver sought to call attorney before taking alcohol test

Jan. 16, 2014

Written by

Vanessa Junkin

Staff Writer

ANNAPOLIS — The case of a Princess Anne woman pulled over on a traffic stop in Fruitland will have statewide implications.

The Maryland Court of Appeals will decide whether a driver who has an attorney available and wants to call should be permitted to do so before deciding whether to take a blood alcohol concentration test.

The seven judges of the state’s highest court heard oral arguments in the case of Motor Vehicle Administration v. April Marie Deering on Jan. 9. The case relates to an MVA license suspension proceeding, not a criminal proceeding.

John Phoebus, a local defense attorney who represents Deering, said he isn’t asking people be appointed a lawyer or that the officer needs to tell the driver about the right to a lawyer. He said before the judges, “when a driver says I have an attorney and I want to call that attorney, the officer should not say no.”

Assistant Attorney General Leight Collins, who represented the Motor Vehicle Administration, argued due process was served in the administrative case.

Collins argued there wasn’t any evidence that Deering didn’t understand the advice, that the officer misled her or that she didn’t make a free and voluntary decision.

“We follow the statute, and it says that the issues are whether or not they are advised and whether or not they refuse the test,” Collins said later.

After Deering, then 28, was pulled over at about 12:07 a.m. May 3, 2012, she asked to contact an attorney who is her friend, according to court records and a transcript of what Phoebus said during an administrative agency appeal in this case in Somerset County Circuit Court.

Fruitland Police Officer John Herbert didn’t allow her to call the attorney, the transcript states Phoebus said. She blew a .16, the transcript states Collins said. That’s twice the legal limit.

Collins said adding anything to the advice of rights form used in impaired driving proceedings would create delays and complications in some cases. The officer has to have the driver take the breath test within two hours, and not all jurisdictions have the equipment, including Fruitland, he said.

(Page 2 of 2)

Judge Clayton Greene Jr. asked Collins what problems would arise if someone was informed he or she had the right to contact an lawyer, if it didn’t interfere with the proceedings.­

After a clarification by another judge, Collins said: “We’re dealing with a hypothetical. I would speculate that it might increase the number of refusals because persons might believe that they’re entitled to talk to an attorney before they decide to take the test and it might create a continued colloquy between the suspect and the police officer.”

The MVA appealed the case from Somerset County Circuit Court, where retired Judge D. William Simpson ruled in favor of Deering, according to a court document submitted by Collins and Attorney General Doug Gansler. Prior to the Circuit Court case, an administrative law judge had ruled that Deering’s license should be suspended for 90 days.

The attorneys wrote in the document that a person’s due process right to a lawyer applies to criminal proceedings, not administrative ones.

Issues that judges brought up to Phoebus included whether the implied consent to testing or affluence had an impact.

“It sounds to me like you’re advocating for a right for the affluent, those who can afford an attorney,” Greene told Phoebus. “I hope that’s not what you’re saying.”

Phoebus said that isn’t what he’s implying; he explained that Deering had someone who would have answered the phone at that time. The advice of rights form can be explained by an attorney, he said.

“If there’s a person who’s readily available to you who can make that difficult document easier for you to understand, fundamental fairness requires a police officer to say, ‘yeah sure,’ ” Phoebus added a little later.

A driver’s license is suspended whether someone refuses to take the test or has a result of .08 BAC or higher.

Collins said Thursday members of the Attorney General’s Office don’t comment on pending litigation.­

Phoebus said after the oral argument that even though Deering ended up making the choice that gave her the least amount of suspended time, it was still unfair that she couldn’t have the input of the lawyer.